Falcone v. Dantinne
| Decision Date | 24 November 1969 |
| Docket Number | No. 17520.,17520. |
| Citation | 420 F.2d 1157 |
| Parties | James S. FALCONE, Appellant, v. Russell DANTINNE, President; Joseph April, Trustee; Philip News, Business Manager; all of the Internal Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge 802; and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge 802. |
| Court | U.S. Court of Appeals — Third Circuit |
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Joseph P. Mylotte, McEwen & McEwen, Upper Darby, Pa., for appellant.
Richard H. Markowitz, Wilderman, Markowitz & Kirschner, Philadelphia, Pa., for appellees.
Before BIGGS, FREEDMAN and STAHL, Circuit Judges.
James S. Falcone brought this action below,1 under the authority of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 401 et seq., to enjoin the imposition of disciplinary measures against him by his union, the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge 802, one of the appellees herein. Appellant Falcone was suspended from the union for a period of five years2 for allegedly encouraging 1,100 union members not to return to work at the Sun Shipbuilding and Dry Dock Company in Chester, Pennsylvania, after the union's officials reported that they had reached a tentative (rather than a firm) accord with management on a collective bargaining agreement. Falcone justified his action on the basis that the membership had mandated a strike unless a firm agreement was reached. Falcone was also accused of speaking derogatorily of some of the union officials and physically threatening members seeking to return to work.3
The thrust of appellant's attack on the union's imposition of disciplinary punishment against him is that at least one of the members of the Trial Body, the finder of fact and "sentencing" organ under the union's constitution, had prejudged the case, thus denying Falcone "a full and fair hearing" as guaranteed under the statute, § 101, 29 U.S.C. § 411 (a) (5):
No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.
The three members of the Trial Body which conducted appellant's hearing were: the chairman, Philip News, Executive Secretary of the Union and its Business Manager; Roosevelt Glass, Inspector and Chief Steward of the Union; and Frank Brooks, Recording Secretary. Prior to the formal hearing by the Trial Body on February 22, 1967, the three members had attended and participated, with other union officials, in an informal proceeding, specifically provided for in the union's constitution,4 where an unsuccessful attempt to work out the differences between the parties was made. The informal hearing was held on January 27, 1967.
In their brief and at oral argument appellees have argued that an adverse decision here may jeopardize the utility of this informal means of dispute settlement. Nothing in this opinion should be construed as disapproving of this informal type of settlement procedure. Indeed, we perceive this to be a valuable tool in the resolution of intra-union disputes. Nor do we see any inherent impropriety in having a union officer who attends and participates in the informal meeting subsequently sit as a member of the Trial Body and as a finder of fact at a formal hearing5 provided there is no element of bias or prejudgment, as we find to be the case here.
What we find offensive, as shown below, is that at least one member of the Trial Body in this case, by his own admission, had made up his mind about Falcone's "guilt" at or prior to the informal proceeding, thus depriving appellant at a full and fair hearing, free of prejudgment, as mandated by the Act.
Philip News, chairman of the Trial Body, testified in the court below as to what transpired at the January 1967 informal hearing. In response to a question by counsel for appellant, Mr. News said:
* * * We asked Mr. Falcone to simply admit his guilt because it was obvious that it appeared by the evidence that he was guilty by all evidence possible, and that if he were to admit his guilt and save us all the necessity of a trial, of a hearing, that the penalty in all likelihood would be much lighter than possibly what it might be if we went to trial, went to hearing. Appendix (App.) 25.
From this we conclude that when he sat later as a member of the Trial Board, News did not have an open mind concerning the charges brought against appellant. He had determined that Falcone was "guilty" of the charges at least as early as the January 27, 1967, informal hearing.
Other testimony by News further supports this conclusion. On redirect examination by appellant's counsel, the following colloquy took place:
Upon questioning by appellees' counsel, Mr. News said:
* * * At the informal meeting on January 27, 1967 * * * three or four of us together repeated as the meeting went on that if he were guilty of the charges he would be foolish to go on and fight. It was just that simple. (App. 198.)
Upon subsequent examination by appellant's counsel, News attempted to justify his prior statements:
We do not believe Falcone's failure to raise the issue of prejudgment in the formal union proceeding constitutes a waiver; thus, it did not preclude him from raising the issue below. The testimony demonstrating prejudgment of guilt was adduced at the trial below. Whether Falcone at the time of the formal Trial Body hearing in February, 1967, knew, or should have known, of News' prejudgment is not directly material. Even if he did, it would seem that in a formal union hearing context, Falcone's participation in the proceedings, and his failure to challenge News as a member of the Trial Board as he had a right to do, 288 F.Supp. at 723, should not be construed as a waiver of such a vital safeguard as the guaranty of an impartial tribunal. Cf. Gulickson v. Forest, 290 F.Supp. 457, 467 (E.D. N.Y.1968); Rekant v. Schochtay-Gasos Union, Local 446, 205 F.Supp. 284, 289 (E.D.Pa.1962), rev'd on other grounds, 320 F.2d 271 (3d Cir. 1963).
Rather than antagonize what he could justifiably believe were already hostile union officials, it is understandable why Falcone, even if he thought of the possibility of challenging the composition of the Trial Body, did not assert such an objection. Moreover, since an element of a full and fair hearing is that the Trial Body be impartial, the duty of disqualification because of prejudgment or bias would seem to rest, at least in part, with the members of the Trial Body.
The district court said on this crucial point:
The fact that the members of the trial board were present at the informal hearing, and presumably were predisposed to a finding of guilt, is without merit. While such procedure may be justifiably subjected to criticism, it does not render the trial unfair per se. * * * 288 F.Supp. at 727.
In support of this conclusion the court cited Null v. Carpenters District Council of Houston, 239 F.Supp. 809 (S.D.Tex. 1965), and Cornelio v. Metropolitan District Council of Philadelphia, 243 F.Supp. 126 (E.D.Pa.1965), aff'd per curiam, 358 F.2d 728 (3d Cir. 1966), cert. denied, 386 U.S. 975, 87 S.Ct. 1167, 18 L.Ed. 2d 134 (1967).
We believe, to the contrary, that these cases do not lend support to the judgment of the district court. Null is clearly distinguishable. It dealt primarily with the adequacy of the notice and written charges given to a union member and the reasonable opportunity afforded him to prepare his defense. The court said further in Null:
* * * The fact that the District Council, from whose members the Trial Committee was selected, ordered an investigation of the plaintiff\'s activities and the filing of charges if the investigation disclosed that the filing of charges was merited does not establish bias or impartiality on the part of any members of the Trial Committee. The plaintiff\'s proof does not establish any bias or lack of impartiality on the part of the members of the Trial Committee. * * * 239 F.Supp. at 815.
In the instant appeal it is not an allegation that any member of the Trial Board instigated the charges that is in issue6 but rather the prejudgment of guilt formed at the informal hearing.
Cornelio raised the question of whether there was built-in bias in the "trial committee" conducting plaintiffs' hearing where elected union business agents, not members of the trial body, instituted the charges against the union members.
The failure of the district court and this court to find bias in Cornelio7 is of little, if any, precedential value under the substantially different facts in this appeal where prejudgment is glaringly apparent. Cf. Martire v. Laborers' Local Union 1058, 410 F.2d 32, 37 (3d...
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